Direct evidence relates to questions of
fact. This is perhaps the most prominent
type of evidence in intercompany arbitration cases as it speaks to individuals
with direct knowledge of the loss such as
an insured or witness. Often, direct evidence is presented through a transcribed
statement that the arbiter will review for
what is said or not said. This evidence is
generally straight forward and submitted to prove a fact a party is seeking to
establish without a requirement of inference or presumption. It can still be
important to bolster the direct evidence
with other proofs toward the totality of
your case. Simply remember the age-old
tenet, “eye-witness testimony is never as
certain as it seems” as you evaluate the
need for further supports. (Tip: If there
were no witnesses to the loss say so in
the contentions in case the adverse party
produces someone. This will signify to
the arbitrator that as part of the decision
making rationale he or she will have to
make a determination on that substantive issue: Was a witness present or not?)

Demonstrative evidence is one of the
most popular types of proof for an intercompany arbitrator because it is offered
as a means to clarify and aid the arbitrator in understanding what happened.

Aerial photos of the loss site, a scenediagram constructed off of witness state-ments and pictures of the damage to thecar are excellent examples. The core ben-efit that every advocate should recognizeis that demonstrative evidence is youropportunity to paint the picture. Theoccasion to present the visual that sup-ports and gains the arbitrator’s attentionto accept your theory. The challenge is tomaintain credibility with the arbitratorby explaining the source of the demon-strative evidence.

For example, the source of the information for the scene diagram, especially
if it differs from any police report submitted into evidence. Conflicting evidence submitted can be a major problem.
(Tip: Be sure to tell the arbitrator in your
contentions what the demonstrative evidence is expected to prove. Do not just
assume the arbiter will see the visual in
the same way in which it was intended.)

Documentary evidence is generallyconstrued as all writings relating to theclaim and submitted to an arbitratorbecause of what it says. A police report,a damage estimate to repair the vehicleand adjuster’s notes from the file areprime examples. Documentary evidenceoften helps prove a fact that is in theevidence itself. For example, there wasdamage to the right front quarter panelas documented by the estimate from therepair shop.

Authentication of the evidence is
generally not an issue in intercompany
arbitration cases. A challenge with documentary evidence, such as adjuster’s
notes, is that they may be considered
akin to hearsay, creating a hurdle that
may have to be overcome so the panelist will accept the notes as reliable. (Tip:
Be cognizant of a concept in arbitration
called “the failure of documentary evidence.” This notion speaks to any party
not submitting a kind of evidence that
the arbitrator would expect to see such
as a police report. This can lead to an adverse inference by the arbitrator that it
was not presented due to its detrimental
nature to your position. A party can deflect that view by offering why particular
evidence was not offered such as a police
report was not taken.)

Opinion evidence speaks to what an
individual thinks about the facts without
having any direct knowledge of what occurred. A cause and origin expert would
be a good example. What a witness
“thinks” about the accident as opposed
to what she saw or an officer’s findings in
a report are other examples. Significant
latitude is given to the arbitrator with
opinion evidence due to the fact that he
or she has subject matter expertise in the
nature of the dispute and would not be
unduly influenced.

Often with a professional expert two
things are important: 1) Credential experts with a vitae. 2) Have them address
what industry practices or standards they
used to reach their conclusions. (Tip: Review any report submitted on your behalf, looking for words like “could have”
or “likely,” since those are not definitive
conclusions.)

Hearsay evidence is a statement offered as proof that what has been stated
or presented is true. What the passenger
in a car heard the adverse driver say to
the officer at the scene would be a prime